Curbing Filibuster Abuse

In 2010, the Brennan Center first issued a report on the causes and harms of current Senate dysfunction, Filibuster Abuse, and put forth a call for sensible reforms. Building on those recommendations, this update provides empirical evidence of how rampant filibuster abuse continues to cause an unprecedented lack of legislative productivity. This analysis also considers, and counters, the frequent assumption that it is divided party control of Congress that has caused a plunge in legislative output. These findings confirm that the Senate must act decisively, at the start of the 113th Congress, to put its house in order.

Introduction

How can we make American government work better?

It is plain that this nation’s problems can only be solved by parties working together through effective public institutions. But Congress has increasingly lost the capacity to make that happen. Over the past decade, time and again, the Senate failed to vote, or even deliberate, on bills that could address the serious issues facing our country. This must change. Ending the dysfunction that has gripped the United States Senate is a necessary first step. If Congress is to fulfill the people’s mandate, the Senate must amend the rules that have become its tools for legislative dysfunction.

In 2010, the Brennan Center first issued a report on the causes and harms of current Senate dysfunction, Filibuster Abuse, and put forth a call for sensible reforms. Building on those recommendations, this update provides empirical evidence of how rampant filibuster abuse continues to cause an unprecedented lack of legislative productivity. Of course, since 2010, Congress has been marked by a division of party control between the House and Senate. Does that account for the gridlock? Emphatically, no. A close study of the Senate’s productivity shows that its paralysis stems from reasons well beyond divided government. The Senate continues to face an unprecedented, effectively permanent filibuster, which affects matters entirely within its own purview. These findings confirm that the Senate must act decisively, at the start of the 113th Congress, to put its house in order.

Why rules reform?

As findings in this update confirm, longstanding rules have become tools for legislative minorities to paralyze the Senate as a lawmaking institution. Under current rules, a minority of lawmakers has effective veto power over bills and nominees, derailing the legislative process. As a consequence, little happens. Even routine legislative matters and governmental appointments are frozen. As a matter of practice, a de facto 60-vote “supermajority” requirement applies to all legislation. This is not what America’s founders had in mind. As Alexander Hamilton noted, requiring a supermajority substitutes “the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt [faction for] the regular deliberations and decisions of a respectable majority.”

As described in Filibuster Abuse, both constitutional structure and Senate history confirm that majority rule “binds both chambers with equal force.” Indeed — except for extraordinary and explicitly designated situations such as expelling members — the Framers specifically rejected supermajority voting requirements after experiencing the consequences of legislative paralysis under the Articles of Confederation. But contrary to this constitutional design, the current Senate Rules impose an untenable supermajority requirement.

Reform of these rules is necessary for overcoming the current state of Senate dysfunction and congressional gridlock. Filibuster abuse devalues the Senate as an institution, cripples Congress, and undermines the proper operation of government — which was meant to function with three branches, not two. For instance, the government cannot properly fund operations when the Senate fails to pass a single appropriations bill, as it has this year. Similarly, courts are left without adequate resources when the Senate ignores its constitutional responsibility to approve or reject judicial nominees.

Filibuster Abuse is Rampant:

As of October 2012, the current Congress has enacted 196 public laws, the lowest output of any Congress since at least World War II. This is not purely the result of divided party control of chambers. Control of the House and Senate was also divided from 1981 to 1987 and 2001 to 2003.

The current Senate passed a record-low 2.8 percent of bills introduced in that chamber, a 66 percent decrease from 2005-2006, and a 90 percent decrease from the high in 1955-1956.

Cloture motions — the only way to forcibly end a filibuster — have skyrocketed since 2006, creating a de facto 60-vote requirement for all Senate business.

In the last three Congresses, the percentage of Senate floor activity devoted to cloture votes has been more than 50 percent greater than any other time since at least World War II, leaving less time for consideration of substantive measures.

On average, it has taken 188 days to confirm a judicial nominee during the current Congress, creating 32 “judicial emergencies,” as designated by the Office of U.S. Courts. Only at the end of the congressional term in 1992 and 2010 have there been more judicial emergencies.

The start of the 113th Congress offers a rare opportunity to set the foundation for reform. On the first day of the legislative session, senators can enact changes in the Standing Rules of the Senate with a simple majority vote, instead of the 67-vote threshold normally required to change the rules. A group of newly-elected, reform-minded senators, joining with an increasing number of like-minded veteran senators, bring reform of Senate Rules within reach.

At the start of the current session two years ago, Senate leaders attempted to bring a modicum of efficiency through an informal understanding. But this “gentleman’s agreement,” which in part was supposed to reduce filibusters, had no discernible impact. Pledges of comity alone cannot rein in procedural abuse. Obstructionist tactics by the minority — and retaliatory measures by the majority — cannot be curbed until the rules permitting these tactics are modified.

After detailing the growth in obstruction over the past six years, this report offers a blueprint for mitigating the worst abuses, while preserving a role for minority input. Commonsense reform is necessary for the Senate to effectively address the challenges the country faces in the 21st century.